SZOVU v Minister for Immigration - [2011] FMCA 504

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOVU & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 504

MIGRATION – RRT decision – Fijian applicant – fears based on religion and perceived political opinions – Tribunal not satisfied that fears well-founded – application for judicial review out of time – fourteen month delay not adequately explained – no merits in grounds of application – extension of time refused – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.424A, 477

Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51
Re RRT & Anor; Ex Parte H (2001) 179 ALR 425
SZBYR & Anor v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZNZU v Minister for Immigration [2010] FMCA 197

First Applicant:

SZOVU

Second Applicant:

SZOVV

Third Applicant:

SZOVW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2692 of 2010

Judgment of:

Smith FM

Hearing date:

27 June 2011

Delivered at:

Sydney

Delivered on:

27 June 2011

REPRESENTATION

Counsel for the Applicants:

1st Applicant in Person

Counsel for the Respondents:

Ms B Rayment

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application is dismissed as incompetent.
The first and second applicants must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2692 of 2010

SZOVU

First Applicant

SZOVV

Second Applicant

SZOVW

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife and their daughter. The husband arrived in Australia most recently in October 2008, and his wife and daughter arrived in December 2008. On 13 January 2009 they applied for protection visas. Only the husband made claims to fear persecution if he returned to their country of nationality, Fiji. I shall refer to him as the applicant.
The applicant’s grounds for claiming to fear persecution in Fiji were set out in the body of his visa application. He referred to the current political situation in Fiji after the 2006 coup, and said “the citizens are not safe, secured and satisfied”. He referred to being a Seventh Day Adventist, and to three members of that church having been killed by the military. He also said “I am one of the people who is distributing a booklet which has poems and prophecies made by our forefathers almost 100 years ago”. He claimed that the poem was understood to refer to the present leader of Fiji, and that that person wanted to “get rid of all the copies of this literature”. He claimed, “I was able to bring some copies with me and distribute them to the Fijian communities here”, and that “If I go back I will definitely be questioned and imprisoned, and if worse comes to worse we will even be killed”.
The applicant attended an interview with a delegate of the Department of Immigration on 25 March 2009, where he clarified his involvement in the distribution of perceived anti-government material. He said that, in fact, he had not brought copies of the poem to Australia and distributed it here, and that he had distributed only three copies among friends while still in Fiji. He had no personal history of any harm at the hands of the present authorities in Fiji, although the economic situation had caused his business to fail.
The delegate made a decision on 9 April 2009 refusing the protection visa applications. The delegate accepted that the applicant might have reservations about returning to Fiji under the current government, but was not satisfied that he would experience persecution for the reason of his political opinion, imputed or otherwise, or for any religious reason, in the reasonably foreseeable future if he returned.
The applicant appealed to the Tribunal. He did not submit any additional evidence, but attended a hearing of the Tribunal on 25 June 2009. The hearing appears to have lasted about two hours. Neither party has submitted a transcript of the recording of the hearing, and I accept the Tribunal’s description in its statement of reasons.
The applicant was asked about his involvement in distributing the poem. His evidence ultimately amounted to a claim that he had given copies of it to three friends between 2002 and 2008, without any adverse consequences being encountered. The applicant also said that he had, with his family, attended a pro-democracy march in Sydney.
The Tribunal discussed with the applicant his refugee claims, and explained the Tribunal’s concerns whether they established that he was entitled to the visa. Although the applicant’s wife did not attend the hearing, the Tribunal spoke to her on the telephone, and she confirmed that she had not applied as a refugee in her own right.
The Tribunal made a decision on 18 August 2009, in which it affirmed the delegate’s decision. In its statement of reasons, after setting out the applicant’s claims and narrating the course of the hearing, the Tribunal referred to country information then available to the Tribunal about the situation in Fiji, particularly in relation to religious groups.
Under the heading “Findings and Reasons”, the Tribunal considered the applicant’s claims on the basis that they could be analysed as raising concerns by reason of religion, political opinion, race, and membership of a particular social group. The Tribunal noted that the applicant had not claimed to have suffered serious harm for a Convention reason in the past.
The Tribunal accepted that he was a member of the Seventh Day Adventist Church and considered the three deaths to which the applicant had referred the Tribunal. The Tribunal said this had occurred because of those persons’ political association, not their religion. The Tribunal said that it was satisfied that the applicant and his family would have been able to worship in Fiji at their church. It held that there was not a real chance that he would suffer serious harm by reasons of his religion if he returned to Fiji.
The Tribunal considered the applicant’s situation as an indigenous Fijian, and it was not satisfied that there was a real chance that he would be persecuted for reasons of his race.
The Tribunal considered the applicant’s political profile in Fiji. It noted that he had voted for the ousted SDL party, but that there was no evidence that he was a senior member of that party. The Tribunal was not satisfied that he had a well-founded fear of being persecuted by reasons of his political opinion. The Tribunal took into account the applicant’s attendance at a demonstration in Australia against the Fijian government, but did not accept that he would be questioned about this if he returned to Fiji, and it found that there was not a real chance that he would face persecution as a result of attending a protest in Sydney.
The Tribunal considered the applicant’s claims that he had distributed a poem with a prophecy, which was regarded as concerning the current Fijian Prime Minister. The Tribunal noted his evidence of having distributed three copies of the document since 2002. It said:
114 …The Tribunal is satisfied that the distribution of this document, three times over a period of six years, has not brought the first named applicant to the attention of the authorities in Fiji. The Tribunal finds that the first named applicant’s concern that if the people to whom he distributed the document are questioned they might reveal that he gave the document to them is speculative. The Tribunal is not satisfied that the Fijian authorities and Mr Bainimarama have any concerns about this poem. The first named applicant gave evidence at the hearing that he did not bring the document to Australia although he stated in the application for a protection visa that he did bring it here.…
115 The Tribunal is not satisfied that the first named applicant has a well founded fear of being persecuted for reasons of his membership of a particular social group, of being a person who distributed the document which he claimed contained a prophecy.
It may be noted that the Tribunal considered the applicant’s fear in relation to his distribution of the poem by reference to the Convention head of a membership of a particular social group, rather than political opinion. In effect, the Tribunal treated the applicant’s claimed fears arising from his distribution of the poem, as being a fear shared with other people who had done this. It is difficult to see how the mere fact of distributing a politically sensitive poem could bring the distributor within the membership of ‘a particular social group’. Perhaps the applicant’s fears could better have been characterised as a fear of persecution for perceived political opinions manifested by his distribution of the poem. However, in my opinion, whatever the preferable characterisation of the applicant’s fears under the Convention, the Tribunal dealt with the applicant’s claims relating to his distribution of the poem sufficiently in law, when making its finding that the applicant’s fears of persecution for this conduct was not well-founded. In my opinion, that finding was not dependent upon, nor affected by, the Tribunal’s Convention characterisation of the claim.
It is also to be noted that the Tribunal expressed general conclusions that there was not a real chance that the applicant would face serious harm for reasons of his religion, his political opinion, his race or his membership of a particular social group, or any other Convention reason “either now or in the reasonably foreseeable future, if he returns to Fiji”.
Under s.477 of the Migration Act, the applicant was required to bring any application for judicial review within 35 days after the Tribunal made the decision. However, he did not commence his present application until 13 December 2010, which is at least 14 months out of time. The Court has power to extend the time to allow it to entertain the present application, but only if it is “satisfied that this is necessary in the interests of the administration of justice” (see s.477(2)). When considering whether it is so necessary the Court generally addresses the explanations for the delay, and the substantive merits of the matter before the court, as well as other considerations (see SZNZU v Minister for Immigration [2010] FMCA 197).
The applicant has not presented evidence to the Court suggesting that there was any delay in his becoming aware of the Tribunal’s decision, nor that he had rights of application to the Court for judicial review. His affidavit explains his delay on the ground that it was “owing to non-availability of financial and legal resources. Now we seek some help from social organisers and Fiji Democratic Party”. The applicant’s submissions today also suggested that his application to the Court was also brought about by a concern about deterioration in the political situation in Fiji. However, I am not satisfied that the applicant has presented to the Court an acceptable explanation overcoming the prima facie unwarranted delay.
It is, however, appropriate for me to consider the substantive grounds of his application, before arriving at a conclusion in relation to the extension of time application.
The grounds of the application are set out in a discursive attachment to the original application, which appears at times to make contentions adopted from other cases which do not have relevance to the applicant’s case. The arguments in the grounds have not been further explained to me by way of amended application or written submission.
They appear to raise two grounds, the first being that “the Tribunal would have had perceived bias against the applicant”. In this respect, several points are unclearly referred to. As I understand it, the applicant invites the conclusion that there might have been an apprehension of bias raised in the mind of a lay observer, due to:
i)the Immigration officers’ previous questioning of the applicant,
ii)an assertion that the Tribunal itself “ran the hearing in a manner that did not allow the applicant to say what he wanted”,
iii)“the Tribunal did not address specific issues with the applicant”,
iv)there was “irrationality in reasoning” by the Tribunal, and
v)“the Tribunal did not ask for any evidence of witnesses that the applicant was taken to the barracks or beaten up or killed”.
In my opinion, there is no substance shown in relation to any of these complaints. Nor can I find any other ground for finding that the principles of apprehended bias set out by the High Court in Re RRT & Anor; Ex Parte H (2001) 179 ALR 425 might be satisfied.
The Tribunal’s references to the applicant’s interview by the delegate showed an appropriate consideration by it of the applicant’s previous evidence, and do not support the ground of bias.
There is no evidence before me that the Tribunal’s conduct of the hearing prevented the applicant from saying whatever he wished to say, by way of pointing to elements in his past history or concerns about the future which might establish a ground of protection under the Refugees Convention.
On the Tribunal’s description of the hearing, it conducted the hearing in a thorough and fair manner, and the applicant has not given any substance to his complaints about the hearing.
There was nothing irrational in the reasoning followed by the Tribunal, which might give substance to a concern about apprehended bias. It has been said: “It is a rare case in which a Court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons” (see Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [18]). I can find no evidence of bias in the present Tribunal’s statement of reasons.
In fact, there is no suggestion that at any time the applicant had claimed to have been taken to the barracks or beaten up or killed.
The applicant’s second ground is an asserted “breach of section 424A”. It is submitted “that the Tribunal has breached section 424A of the Act, and the Tribunal used delegate’s information and conclusion in making its decision”.
This contention is obscure. I am unable to identify any information falling within s.424A(1), which might have appeared to the Tribunal to provide the reason or part of the reason for affirming the delegate’s decision. The factual material addressed by both the delegate and the Tribunal consisted of the applicant’s own evidence and country information, neither of which is required to be put to the applicant for comment under s.424A(1). The Tribunal’s thought processes about that evidence were not such information (see SZBYR & Anor v Minister for Immigration & Citizenship (2007) 235 ALR 609).
I can therefore find no substance in the grounds of review submitted in the application.
The applicant’s concern expressed to me today arose from new information about the situation in Fiji, which he tendered. All of this information came into existence, and concerned events, subsequent to the Tribunal’s decision. In effect, he submitted that the Court itself should address the current situation in Fiji, and find that the Tribunal arrived at an incorrect decision. However, this misunderstands the function of the Court, which is not to address whether the applicant currently has grounds for receiving refugee protection in Australia. The Court’s function is confined to assessing whether the past decision of the Tribunal was affected by jurisdictional error, based on the material which was before the Tribunal. For the above reasons, I have not found arguable grounds of any such errors.
Taking into account the lack of merit in the matter and the unsatisfactorily explained delay in coming to the Court, I have not been persuaded in terms of s.477(2) that it is necessary in the interests of the administration of justice to extend time in this case.
I must therefore dismiss the application on the ground that it is incompetent.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 6 July 2011